DECISION No.312 of November 19 th 2002

Transcription

1 DECISION No.312 of November 19 th 2002 on the objection of unconstitutionality of provisions under Article 1 paragraph (2) of Law No.9/1998 regarding the award of compensations to Romanian citizens for the assets passed into the Bulgarian State property pursuant to the enforcement of the Treaty between Romania and Bulgaria, done at Craiova on September 7 th 1940, republished Published in the Official Gazette of Romania, Part I, No.81 of February 7 th 2003 Costică Bulai Constantin Doldur Kozsokár Gábor Petre Ninosu Şerban Viorel Stănoiu Lucian Stângu Ioan Vida Paula C. Pantea Claudia Miu President Public Prosecutor Assistant-Magistrate-in-chief The case at issue is the settlement of the objection of unconstitutionality regarding the provisions under Article 1 paragraph (2) of the Law no.9/1998 on the award of compensations to Romanian citizens for the assets passed into the Bulgarian State property pursuant to the enforcement of the Treaty between Romania and Bulgaria, done at Craiova on September 7 th 1940, republished. The objection was raised by E.M. in the File no.1175/ca/2001 of the Bucharest County Court Fifth Civil and Administrative Contentious Division, and by Z.A. in the File no.826/com/2002 of the Galaţi County Court Commercial, Administrative Contentious, Maritime and Waterway Division. Upon the roll call made in the File no.159c/2002, there attends E.M., author of the objection of unconstitutionality, the other parties being default, against which the summons procedure has been lawfully carried out. The Court orders the roll call also in the File no.321/2002, the parties being default, against which the summons procedure has been lawfully carried out. The Court, on its own motion, submits for argument the joining together of File no.321c/2002 and File no.159c/2002, in regard of their having the same subject matter and the same cause of action. The author of the objection and the Public Ministry agree to the joinder. In consideration of their statements, for purposes of better administration of justice, the Court orders, on the grounds of Article 164 of the Code of Civil Procedure, that File no.321c/2002 and File no.159c/2002 be joined together. As the case is in motion, E.M., the author of the objection of unconstitutionality, in presenting also written pleadings, requests that the provisions under Article 1 paragraph (2) of the Law no.9/1998, republished, inasmuch as testamentary heirs are foreclosed from the benefit of being awarded compensations for the assets passed into the Bulgarian State property, should be held as contrary to the provisions under

2 Articles 16, 42, 49, and 135 of the Constitution, as well as to the Constitutional Court s settled case-law, whereas by Decision no.73 of July 19 th 1995 it has ruled that the law recognizes either form of succession, legal and testamentary. The representative of the Public Ministry concludes that the objection should be allowed, and points out that the legal text impugned, in having limited the award of compensations to only the former owners and their legal heirs, has infringed the principle of equality, by creating a discrimination between the successors in title, as well as the provisions under Article 42 of the Constitution, which guarantees the right of inheritance. THE COURT, taking into account the documents and the acts in the case file, finds as follows Through the Interlocutory Order of January 30 th 2002, rendered in the File no.1175/ca/2001, and by the Interlocutory Order of June 27 th 2002, rendered in the File no.826/com/2002, the Bucharest County Court Fifth Civil and Administrative Contentious Division, and the Galaţi County Court Commercial, Administrative Contentious, Maritime and Waterway Division, respectively, referred to the Constitutional Court the objection of unconstitutionality of the provisions under Article 1 paragraph (2) of Law no.9/1998 regarding the award of compensations to Romanian citizens for the assets passed into the Bulgarian State property pursuant to the enforcement of the Treaty between Romania and Bulgaria, done at Craiova on September 7 th 1940, republished. The objection was raised by E.M. and Z.A. in court cases dealing with contested decisions of the Central Board for the implementation of Law no.9/1998 attached to the Ministry of Public Finances, on the validity of assessment made by the local boards of the Bucharest Municipality, and the Galaţi County, respectively, established for the implementation of the same law. As grounds for the objection of unconstitution-ality it is claimed that limitations imposed by the challenged provisions on the sphere of persons who are entitled to seek compensations, i.e. only former owners and their legal heirs, testamentary heirs excluded, have instituted a discriminatory measure to the detriment of the latter, which is contrary to the provisions under Article 16 of the Constitution. The provisions under Article 1 paragraph (2) of the criticized law further infringe those under Article 42 of the Constitution, which guarantee the right of inheritance, where no distinction has been made as to the form of succession, whether legal or testamentary.[...] The successors rights, irrespective of their vocation, are identical with those vested in the former owner, to whose succession they are called upon. The said provisions also contravene those under Article 49 of the Constitution, as the limitation on the right of inheritance is not required by any of the situations expressly mentioned therein. In the statement of grounds for the criticism of unconstitutionality, citation is also made of the Constitutional Court Decision no.73 of July 19 th 1995 regarding the constitutionality of some provisions under the Law regulating the legal status of certain residential property passed into State ownership, whereby it ruled that the law subjected to examination had recognized either form of succession. The Courts of Law regard the objection of unconstitu- tionality as being illfounded. According to the provisions of Article 24 paragraph (1) of Law no.47/1992, republished, and Article 18 1 of Law no.35/1997 on the organisation and functioning of

3 the Advocate of the People institution, as supplemented by Law no.181/2002, the Interlocutory Order of reference to the Constitutional Court was forwarded to the Presidents of the two Chambers of Parliament, to the Government, as well as to the Advocate of the People, in order to express their viewpoints on the objection of unconstitutionality raised. In its viewpoint, the Government deems that the objection of unconstitutionality is ill-founded. Thus, it is considered there has been no breach of Article 42 of the Constitution, guaranteeing the right of inheritance, since at the material time of the opening of the succession, the immovable property forming the object of Law no.9/1998 had not been part of the primary beneficiaries estate before the law came into force. As a consequence, the right to receive compensations was born under the law, at the date of its coming into force, and in the hypothesis that the primary beneficiary had been deceased at that date, the amount of money due as compensation would not be absorbed into the assets of the estate at the material time when such is passed to the heirs, but were to be accrued to its value as of the effective date of the law. However, the legislature could not have substituted for the will of de cujus, establishing a special vocation for inheritance in the person of his testamentary heirs. In fact, notes the Government, it has been the legislature s choice that only former owners and their legal heirs are entitled to benefit by such measures of compensation. In the viewpoint of the Advocate of the People, it is claimed that the provisions impugned are constitutional. The criticism regarding an alleged violation of the principle of equality is ill-founded, as this one does not preclude the legislature s decision to adopt disparate solutions for unlike situations. Then, even the civil law has set out special rules for the protection of legal, against testamentary, heirs. The Presidents of the two Chambers of Parliament did not submit their viewpoints. THE COURT, having examined the Interlocutory Order of reference, the viewpoints of the Government and the Advocate of the People, the reports drawn up by the judgeraporteurs, submissions made by the present party, the prosecutor s conclusions, the legal provisions impugned, in relation to the provisions of the Constitution, as well as provisions of Law no.47/1992, holds as follows: The Constitutional Court has been legally referred to, and is competent, according to the provisions of Article 144 subparagraph c) of the Constitution, as well as of Article 1 paragraph (1), of Articles 2, 3, 12, and 23 of Law no.47/1992, republished, to settle the objection of unconstitutionality raised. The subject matter of the objection of unconstitu-tionality is the provisions under Article 1 paragraph (2) of Law no.9/1998 on the award of compensations to Romanian citizens for the assets passed into the Bulgarian State property pursuant to the enforcement of the Treaty between Romania and Bulgaria, done at Craiova on September 7 th 1940, republished in the Official Gazette of Romania, Part I, no.105 of February 7 th Since provisions of Article 1 paragraph (2) are subjacent to those at paragraph (1) of the same article and the two are correlated, it is necessary to quote the entire content of both paragraphs, reading as follows: (1) Romanian citizens who had suffered losses pursuant to the enforcement of the Treaty between Romania and Bulgaria, done at Craiova on September 7 th 1940, hereinafter denoted as the Treaty, are entitled to compensations established according to this law, insofar as they have not received beforehand, or have

4 received only in part, compensations or damages for the immovable property constructions and lands owned in the counties of Durostor and Caliacra, that were surrendered to Bulgaria, as well as for non-harvested crops of maize, cotton, and sunflower. (2) If Romanian citizens, legal heirs of the former owners shall also benefit from the provisions under paragraph (1). Although the authors of the objection claim that the above-mentioned legal texts have breached on the provisions under Articles 16, 42, 49, and 135 of the Constitution, the Court finds relevant, in the instant case, only those of Article 16 paragraph (1), Article 42, and Article 49 paragraph (1), with the following content: Article 16: (1) Citizens are equal before the law and public authorities, without any privilege or discrimination. ; Article 42: The right of inheritance is guaranteed. ; Article 49 paragraph (1): The exercise of certain rights or freedoms may be restricted only by law, and only if necessary, as the case may be, for: the defence of national security, public order, health, or morals, of the citizens rights and freedoms; as required for conducting a criminal investigation; for the prevention of the consequences of a natural calamity or extremely grave disaster. In order to examine the objection of unconstitu-tionality, the Court holds that at first it must establish at what specific point in time the right to compensations was born for the Romanian nationals who left Bulgaria by virtue of the said Treaty. To this effect, provisions under Article V paragraph 1 of the Agreement on the Exchange of Romanian and Bulgarian Population, Annex C to the Treaty, stipulate that The Romanian State undertakes the obligation to pay compensation to Romanians who leave their assets situated in the territories transferred to Bulgaria. Hence it follows that Romanians who left Bulgaria, by virtue of the agreement, became creditors of the Romanian State. This capacity has been had in view by the current legislature, when establishing, at Article 1 paragraph (1) of the impugned law, the scope of this right to compensation against previous compensations or damages awarded, in full or in part, to the aggrieved ones. That being so, entitlement to the debts incurring on the State entered the estate of former owners, Romanian citizens, as victims of the enforced Treaty, at the date of its coming into force. As a result, former owners had the capacity to dispose of such right in personam by acts in contemplation of death [mortis causa]. For the aforementioned reasons, the Court holds that the criticism of unconstitutionality is well-founded, namely that provisions under Article 1 paragraph (2) of the Law no.9/1998, republished, are contrary to those under Article 42 of the Constitution inasmuch as they have narrowed down the sphere of persons entitled to the award of compensations, to former owners and their legal heirs, testamentary heirs being left out. Indeed, Article 42 of the Constitution guarantees the right of inheritance without any limitation of the guarantee thus instituted, meaning legal inheritance alone. Nonetheless, since the right of inheritance, in general, is related to both legal, and testamentary, inheritance, the limitation imposed by Article 1 paragraph (2) of the Law no.9/1998 contravenes the constitutional text. The Court further notes that the criticism regarding a violation of provisions under Article 16 of the Constitution is well-grounded, too. In its established case-law, the Constitutional Court has constantly held that the application of different legal treatment is solely justified by the existence of different situations. However, as far as the instant matter is concerned, whether the successor in title is a legal, or a testamentary, heir does not place the respective holder in a different

5 situation, such as it may have required a differentiated legal treatment, without being discriminatory. That is why the legal provision herein impugned contravenes the principle of equality enshrined by Article 16 of the Constitution. In what regards the claim that provisions under Article 1 paragraph (1) of the Law no.9/1998, republished, are also contradictory to the ones under Article 49 of the Constitution, the Court holds that, too, as being well-founded. Whereas the entitlement to the debts incurring on the Romanian State had existed in the former owners estate, at the time of their death, therefore could be passed to another by way of testament, the legal provisions criticised have brought limitation to the exercise of the right of inheritance, notwithstanding the lack of justification, in the instant case, relying on any of the cases expressly and restrictively stipulated by the constitutional text. That being so, the Court holds the provisions under its scrutiny as being unconstitutional, so that the objection must be allowed. For the reasons set forth herein, on the grounds of Article 144 subparagraph c) and Article 145 paragraph (2) of the Constitution, as well as of Articles 1, 2, Article 13 paragraph (1) subparagraph A.c), Article 23 of Law no.47/1992, republished, THE COURT In the name of law DECIDES: Allows the objection of unconstitutionality and holds that the provisions under Article 1 paragraph (2) of Law no.9/1998 on the award of compensations to Romanian citizens for the assets passed into the Bulgarian State property pursuant to the enforcement of the Treaty between Romania and Bulgaria, done at Craiova on September 7 th 1940, republished, are unconstitutional inasmuch as testamentary heirs have been deprived of the benefit of being awarded compensations, set out in Article 1 paragraph (1) of the same law. The objection was raised by E.M. in the File no.1175/ca/2001 of the Bucharest County Court Fifth Civil and Administrative Contentious Division, and by Z.A. in the File no.826/com/2002 of the Galaţi County Court Commercial, Administrative Contentious, Maritime and Waterway Division. Final and binding. The decision shall be communicated to both Chambers of Parliament and to the Government. Delivered in public hearing on November 19 th PRESIDENT OF THE CONSTITUTIONAL COURT, Prof.Dr. COSTICĂ BULAI Assistant-Magistrate-in-chief, Claudia Miu